APPENDIX B TO PART 104 GUIDELINES FOR ELIMINATING DISCRIMINATION AND DENIAL
OF SERVICES ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, AND HANDICAP
IN VOCATIONAL EDUCATION PROGRAMS [NOTE]

AUTHORITY: 20 U.S.C. 1405; 29 U.S.C. 794.

SOURCE: 45 FR 30936, May 9, 1980, unless otherwise noted.

Subpart A -- General
Provisions

104.1 Purpose.

The purpose of this part is to effectuate
section 504 of the Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity receiving
Federal financial assistance.

104.2 Application.

This part applies to each recipient of Federal
financial assistance from the Department of Education and to the program or
activity that receives such assistance.

(c) Education of the Handicapped Act
means that statute as amended by the Education for all Handicapped Children Act
of 1975, Pub. L. 94‑142, 20 U.S.C. 1401 et seq.

(d) Department means the Department
of Education.

(e) Assistant Secretary means the
Assistant Secretary for Civil Rights of the Department of Education.

(f) Recipient means any state or its
political subdivision, any instrumentality of a state or its political
subdivision, any public or private agency, institution, organization, or other
entity, or any person to which Federal financial assistance is extended directly
or through another recipient, including any successor, assignee, or transferee
of a recipient, but excluding the ultimate beneficiary of the assistance.

(g) Applicant for assistance means
one who submits an application, request, or plan required to be approved by a
Department official or by a recipient as a condition to becoming a
recipient.

(h) Federal financial assistance
means any grant, loan, contract (other than a procurement contract or a contract
of insurance or guaranty), or any other arrangement by which the Department
provides or otherwise makes available assistance in the form of:

(1) Funds;

(2) Services of Federal personnel; or

(3) Real and personal property or any interest
in or use of such property, including:

(i) Transfers or leases of such property for
less than fair market value or for reduced consideration; and

(ii) Proceeds from a subsequent transfer or
lease of such property if the Federal share of its fair market value is not
returned to the Federal Government.

(i) Facility means all or any portion
of buildings, structures, equipment, roads, walks, parking lots, or other real
or personal property or interest in such property.

(j) Handicapped person -- (1)
Handicapped persons means any person who (i) has a physical or mental
impairment which substantially limits one or more major life activities, (ii)
has a record of such an impairment, or (iii) is regarded as having such an
impairment.

(2) As used in paragraph (j)(1) of this
section, the phrase:

(i) Physical or mental impairment
means (A) any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive, digestive, genito‑urinary; hemic
and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities.

(iii) Has a record of such an
impairment means has a history of, or has been misclassified as having, a
mental or physical impairment that substantially limits one or more major life
activities.

(iv) Is regarded as
having an impairment means (A) has a physical or mental impairment that
does not substantially limit major life activities but that is treated by a
recipient as constituting such a limitation; (B) has a physical or mental
impairment that substantially limits major life activities only as a result of
the attitudes of others toward such impairment; or (C) has none of the
impairments defined in paragraph (j)(2)(i) of this section but is treated by a
recipient as having such an impairment.

(k) Program or activity means all of
the operations of--

(1)(i) A department, agency, special purpose
district, or other instrumentality of a State or of a local government; or

(ii) The entity of such State or local
government that distributes such assistance and each such department or agency
(and each other State or local government entity) to which the assistance is
extended, in the case of assistance to a State or local government;

(2)(i) A college, university, or other
postsecondary institution, or a public system of higher education; or

(ii) A local educational agency (as defined in
20 U.S.C. 8801), system of vocational education, or other school system;

(3)(i) An entire corporation, partnership, or
other private organization, or an entire sole proprietorship--

(A) If assistance is extended to such
corporation, partnership, private organization, or sole proprietorship as a
whole; or

(B) Which is principally engaged in the
business of providing education, health care, housing, social services, or parks
and recreation; or

(ii) The entire plant or other comparable,
geographically separate facility to which Federal financial assistance is
extended, in the case of any other corporation, partnership, private
organization, or sole proprietorship; or

(4) Any other entity which is established by
two or more of the entities described in paragraph (k)(1), (2), or (3) of this
section; any part of which is extended Federal financial assistance.

(Authority: 29 U.S.C. 794(b))

(l) Qualified handicapped person
means:

(1) With respect to employment, a handicapped
person who, with reasonable accommodation, can perform the essential functions
of the job in question;

(2) With respect to public preschool
elementary, secondary, or adult educational services, a handicappped person (i)
of an age during which nonhandicapped persons are provided such services, (ii)
of any age during which it is mandatory under state law to provide such services
to handicapped persons, or (iii) to whom a state is required to provide a free
appropriate public education under section 612 of the Education of the
Handicapped Act; and

(3) With respect to postsecondary and
vocational education services, a handicapped person who meets the academic and
technical standards requisite to admission or participation in the recipient's
education program or activity;

(4) With respect to other services, a
handicapped person who meets the essential eligibility requirements for the
receipt of such services.

(m) Handicap means any condition or
characteristic that renders a person a handicapped person as defined in
paragraph (j) of this section.

104.4 Discrimination prohibited.

(a) General. No qualified handicapped
person shall, on the basis of handicap, be excluded from participation in, be
denied the benefits of, or otherwise be subjected to discrimination under any
program or activitiy which receives Federal financial assistance.

(b) Discriminatory actions
prohibited. (1) A recipient, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements, on the
basis of handicap:

(i) Deny a qualified handicapped person the
opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified handicapped person an
opportunity to participate in or benefit from the aid, benefit, or service that
is not equal to that afforded others;

(iii) Provide a qualified handicapped person
with an aid, benefit, or service that is not as effective as that provided to
others;

(iv) Provide different or separate aid,
benefits, or services to handicapped persons or to any class of handicapped
persons unless such action is necessary to provide qualified handicapped persons
with aid, benefits, or services that are as effective as those provided to
others;

(v) Aid or perpetuate discrimination against a
qualified handicapped person by providing significant assistance to an agency,
organization, or person that discriminates on the basis of handicap in providing
any aid, benefit, or service to beneficiaries of the recipients program or
activity;

(vi) Deny a qualified handicapped person the
opportunity to participate as a member of planning or advisory boards; or

(vii) Otherwise limit a qualified handicapped
person in the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving an aid, benefit, or service.

(2) For purposes of this part, aids, benefits,
and services, to be equally effective, are not required to produce the identical
result or level of achievement for handicapped and nonhandicapped persons, but
must afford handicapped persons equal opportunity to obtain the same result, to
gain the same benefit, or to reach the same level of achievement, in the most
integrated setting appropriate to the person's needs.

(3) Despite the existence of separate or
different aid, benefits, or services provided in accordance with this part, a
recipient may not deny a qualified handicapped person the opportunity to
participate in such aid, benefits, or services that are not separate or
different.

(4) A recipient may not, directly or through
contractual or other arrangements, utilize criteria or methods of administration
(i) that have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap, (ii) that have the purpose or effect of
defeating or substantially impairing accomplishment of the objectives of the
recipient's program or activity with respect to handicapped persons, or (iii)
that perpetuate the discrimination of another recipient if both recipients are
subject to common administrative control or are agencies of the same State.

(5) In determining the site or location of a
facility, an applicant for assistance or a recipient may not make selections (i)
that have the effect of excluding handicapped persons from, denying them the
benefits of, or otherwise subjecting them to discrimination under any program or
activity that receives Federal financial assistance or (ii) that have the
purpose or effect of defeating or substantially impairing the accomplishment of
the objectives of the program or activity with respect to handicapped
persons.

(6) As used in this section, the aid, benefit,
or service provided under a program or activity receiving Federal financial
assistance includes any aid, benefit, or service provided in or through a
facility that has been constructed, expanded, altered, leased or rented, or
otherwise acquired, in whole or in part, with Federal financial assistance.

(c) Aid, benefits or services limited by
Federal law. The exclusion of nonhandicapped persons from aid, benefits,
or services limited by Federal statute or executive order to handicapped persons
or the exclusion of a specific class of handicapped persons from aid, benefits,
or services limited by Federal statute or executive order to a different class
of handicapped persons is not prohibited by this part.

104.5 Assurances required.

(a) Assurances. An applicant for
Federal financial assistance to which this part applies shall submit an
assurance, on a form specified by the Assistant Secretary, that the program or
activity will be operated in compliance with this part. An applicant may
incorporate these assurances by reference in subsequent applications to the
Department.

(b) Duration of obligation. (1) In
the case of Federal financial assistance extended in the form of real property
or to provide real property or structures on the property, the assurance will
obligate the recipient or, in the case of a subsequent transfer, the transferee,
for the period during which the real property or structures are used for the
purpose for which Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits.

(2) In the case of Federal financial
assistance extended to provide personal property, the assurance will obligate
the recipient for the period during which it retains ownership or possession of
the property.

(3) In all other cases the assurance will
obligate the recipient for the period during which Federal financial assistance
is extended.

(c) Covenants. (1) Where Federal
financial assistance is provided in the form of real property or interest in the
property from the Department, the instrument effecting or recording this
transfer shall contain a covenant running with the land to assure
nondiscrimination for the period during which the real property is used for a
purpose for which the Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits.

(2) Where no transfer of property is involved
but property is purchased or improved with Federal financial assistance, the
recipient shall agree to include the covenant described in paragraph (b)(2) of
this section in the instrument effecting or recording any subsequent transfer of
the property.

(3) Where Federal financial assistance is
provided in the form of real property or interest in the property from the
Department, the covenant shall also include a condition coupled with a right to
be reserved by the Department to revert title to the property in the event of a
breach of the covenant. If a transferee of real property proposes to mortgage or
otherwise encumber the real property as security for financing construction of
new, or improvement of existing, facilities on the property for the purposes for
which the property was transferred, the Assistant Secretary may, upon request of
the transferee and if necessary to accomplish such financing and upon such
conditions as he or she deems appropriate, agree to forbear the exercise of such
right to revert title for so long as the lien of such mortgage or other
encumbrance remains effective.

104.6 Remedial action, voluntary action, and
self‑evaluation.

(a) Remedial action. (1) If the
Assistant Secretary finds that a recipient has discriminated against persons on
the basis of handicap in violation of section 504 or this part, the recipient
shall take such remedial action as the Assistant Secretary deems necessary to
overcome the effects of the discrimination.

(2) Where a recipient is found to have
discriminated against persons on the basis of handicap in violation of section
504 or this part and where another recipient exercises control over the
recipient that has discriminated, the Assistant Secretary, where appropriate,
may require either or both recipients to take remedial action.

(3) The Assistant Secretary may, where
necessary to overcome the effects of discrimination in violation of section 504
or this part, require a recipient to take remedial action (i) with respect to
handicapped persons who are no longer participants in the recipient's program or
activity but who were participants in the program or activity when such
discrimination occurred or (ii) with respect to handicapped persons who would
have been participants in the program or activity had the discrimination not
occurred.

(b) Voluntary action. A recipient may
take steps, in addition to any action that is required by this part, to overcome
the effects of conditions that resulted in limited participation in the
recipient's program or activity by qualified handicapped persons.

(c) Self‑evaluation. (1) A recipient
shall, within one year of the effective date of this part:

(i) Evaluate, with the assistance of
interested persons, including handicapped persons or organizations representing
handicapped persons, its current policies and practices and the effects thereof
that do not or may not meet the requirements of this part;

(ii) Modify, after consultation with
interested persons, including handicapped persons or organizations representing
handicapped persons, any policies and practices that do not meet the
requirements of this part; and

(iii) Take, after consultation with interested
persons, including handicapped persons or organizations representing handicapped
persons, appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and practices.

(2) A recipient that employs fifteen or more
persons shall, for at least three years following completion of the evaluation
required under paragraph (c)(1) of this section, maintain on file, make
available for public inspection, and provide to the Assistant Secretary upon
request:

(i) A list of the interested persons
consulted,

(ii) A description of areas examined and any
problems identified, and

(iii) A description of any modifications made
and of any remedial steps taken.

104.7 Designation of responsible employee and
adoption of grievance procedures.

(a) Designation of responsible
employee. A recipient that employs fifteen or more persons shall designate
at least one person to coordinate its efforts to comply with this part.

(b) Adoption of grievance procedures.
A recipient that employs fifteen or more persons shall adopt grievance
procedures that incorporate appropriate due process standards and that provide
for the prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with respect to
complaints from applicants for employment or from applicants for admission to
postsecondary educational institutions.

104.8 Notice.

(a) A recipient that employs fifteen or more
persons shall take appropriate initial and continuing steps to notify
participants, beneficiaries, applicants, and employees, including those with
impaired vision or hearing, and unions or professional organizations holding
collective bargaining or professional agreements with the recipient that it does
not discriminate on the basis of handicap in violation of section 504 and this
part. The notification shall state, where appropriate, that the recipient does
not discriminate in admission or access to, or treatment or employment in, its
program or activity. The notification shall also include an identification of
the responsible employee designated pursuant to
104.7(a). A recipient shall make the initial
notification required by this paragraph within 90 days of the effective date of
this part. Methods of initial and continuing notification may include the
posting of notices, publication in newspapers and magazines, placement of
notices in recipients' publication, and distribution of memoranda or other
written communications.

(b) If a recipient publishes or uses
recruitment materials or publications containing general information that it
makes available to participants, beneficiaries, applicants, or employees, it
shall include in those materials or publications a statement of the policy
described in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing materials
and publications or by revising and reprinting the materials and
publications.

104.9 Administrative requirements for small
recipients.

The Assistant Secretary may require any
recipient with fewer than fifteen employees, or any class of such recipients, to
comply with 104.7 and 104.8, in whole or in part, when the Assistant
Secretary finds a violation of this part or finds that such compliance will not
significantly impair the ability of the recipient or class of recipients to
provide benefits or services.

104.10 Effect of state or local law or other
requirements and effect of employment opportunities.

(a) The obligation to comply with this part is
not obviated or alleviated by the existence of any state or local law or other
requirement that, on the basis of handicap, imposes prohibitions or limits upon
the eligibility of qualified handicapped persons to receive services or to
practice any occupation or profession.

(b) The obligation to comply with this part is
not obviated or alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped persons than for
nonhandicapped persons.

Subpart B -- Employment
Practices

104.11 Discrimination prohibited.

(a) General. (1) No qualified
handicapped person shall, on the basis of handicap, be subjected to
discrimination in employment under any program or activity to which this part
applies.

(2) A recipient that receives assistance under
the Education of the Handicapped Act shall take positive steps to employ and
advance in employment qualified handicapped persons in programs or activities
assisted under that Act.

(3) A recipient shall make all decisions
concerning employment under any program or activity to which this part applies
in a manner which ensures that discrimination on the basis of handicap does not
occur and may not limit, segregate, or classify applicants or employees in any
way that adversely affects their opportunities or status because of
handicap.

(4) A recipient may not participate in a
contractual or other relationship that has the effect of subjecting qualified
handicapped applicants or employees to discrimination prohibited by this
subpart. The relationships referred to in this paragraph include relationships
with employment and referral agencies, with labor unions, with organizations
providing or administering fringe benefits to employees of the recipient, and
with organizations providing training and apprenticeships.

(b) Specific activities. The
provisions of this subpart apply to:

(1) Recruitment, advertising, and the
processing of applications for employment;

(6) Fringe benefits available by virtue of
employment, whether or not administered by the recipient;

(7) Selection and financial support for
training, including apprenticeship, professional meetings, conferences, and
other related activities, and selection for leaves of absence to pursue
training;

(8) Employer sponsored activities, including
those that are social or recreational; and

(9) Any other term, condition, or privilege of
employment.

(c) A recipient's obligation to comply with
this subpart is not affected by any inconsistent term of any collective
bargaining agreement to which it is a party.

104.12 Reasonable accommodation.

(a) A recipient shall make reasonable
accommodation to the known physical or mental limitations of an otherwise
qualified handicapped applicant or employee unless the recipient can demonstrate
that the accommodation would impose an undue hardship on the operation of its
program or activity.

(b) Reasonable accommodation may include:

(1) Making facilities used by employees
readily accessible to and usable by handicapped persons, and

(2) Job restructuring, part‑time or modified
work schedules, acquisition or modification of equipment or devices, the
provision of readers or interpreters, and other similar actions.

(c) In determining pursuant to paragraph (a)
of this section whether an accommodation would impose an undue hardship on the
operation of a recipient's program or activity, factors to be considered
include:

(1) The overall size of the recipient's
program or activity with respect to number of employees, number and type of
facilities, and size of budget;

(2) The type of the recipient's operation,
including the composition and structure of the recipient's workforce; and

(3) The nature and cost of the accommodation
needed.

(d) A recipient may not deny any employment
opportunity to a qualified handicapped employee or applicant if the basis for
the denial is the need to make reasonable accommodation to the physical or
mental limitations of the employee or applicant.

104.13 Employment criteria.

(a) A recipient may not make use of any
employment test or other selection criterion that screens out or tends to screen
out handicapped persons or any class of handicapped persons unless:

(1) The test score or other selection
criterion, as used by the recipient, is shown to be job‑related for the position
in question, and

(2) Alternative job‑related tests or criteria
that do not screen out or tend to screen out as many handicapped persons are not
shown by the Director to be available.

(b) A recipient shall select and administer
tests concerning employment so as best to ensure that, when administered to an
applicant or employee who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever other factor the test purports to
measure, rather than reflecting the applicant's or employee's impaired sensory,
manual, or speaking skills (except where those skills are the factors that the
test purports to measure).

104.14 Preemployment inquiries.

(a) Except as provided in paragraphs (b) and
(c) of this section, a recipient may not conduct a preemployment medical
examination or may not make preemployment inquiry of an applicant as to whether
the applicant is a handicapped person or as to the nature or severity of a
handicap. A recipient may, however, make preemployment inquiry into an
applicant's ability to perform job‑related functions.

(b) When a recipient is taking remedial action
to correct the effects of past discrimination pursuant to 104.6 (a), when
a recipient is taking voluntary action to overcome the effects of conditions
that resulted in limited participation in its federally assisted program or
activity pursuant to 104.6(b), or when a recipient is taking affirmative
action pursuant to section 503 of the Act, the recipient may invite applicants
for employment to indicate whether and to what extent they are handicapped,
Provided, That:

(1) The recipient states clearly on any
written questionnaire used for this purpose or makes clear orally if no written
questionnaire is used that the information requested is intended for use solely
in connection with its remedial action obligations or its voluntary or
affirmative action efforts; and

(2) The recipient states clearly that the
information is being requested on a voluntary basis, that it will be kept
confidential as provided in paragraph (d) of this section, that refusal to
provide it will not subject the applicant or employee to any adverse treatment,
and that it will be used only in accordance with this part.

(c) Nothing in this section shall prohibit a
recipient from conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty,
Provided, That:

(1) All entering employees are subjected to
such an examination regardless of handicap, and

(2) The results of such an examination are
used only in accordance with the requirements of this part.

(d) Information obtained in accordance with
this section as to the medical condition or history of the applicant shall be
collected and maintained on separate forms that shall be accorded
confidentiality as medical records, except that:

(1) Supervisors and managers may be informed
regarding restrictions on the work or duties of handicapped persons and
regarding necessary accommodations;

(2) First aid and safety personnel may be
informed, where appropriate, if the condition might require emergency treatment;
and

(3) Government officials investigating
compliance with the Act shall be provided relevant information upon request.

Subpart
C--Accessibility

104.21 Discrimination prohibited.

No qualified handicapped person shall, because
a recipient's facilities are inaccessible to or unusable by handicapped persons,
be denied the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity to which this part
applies.

104.22 Existing facilities.

(a) Accessibility. A recipient shall
operate its program or activity so that when each part is viewed in its
entirety, it is readily accessible to handicapped persons. This paragraph does
not require a recipient to make each of its existing facilities or every part of
a facility accessible to and usable by handicapped persons.

(b) Methods. A recipient may comply
with the requirements of paragraph (a) of this section through such means as
redesign of equipment, reassignment of classes or other services to accessible
buildings, assignment of aides to beneficiaries, home visits, delivery of
health, welfare, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with the requirements of 104.23, or any other methods that result
in making its program or activity accessible to handicapped persons. A recipient
is not required to make structural changes in existing facilities where other
methods are effective in achieving compliance with paragraph (a) of this
section. In choosing among available methods for meeting the requirement of
paragraph (a) of this section, a recipient shall give priority to those methods
that serve handicapped persons in the most integrated setting appropriate.

(c) Small health, welfare, or other social
service providers. If a recipient with fewer than fifteen employees that
provides health, welfare, or other social services finds, after consultation
with a handicapped person seeking its services, that there is no method of
complying with paragraph (a) of this section other than making a significant
alteration in its existing facilities, the recipient may, as an alternative,
refer the handicapped person to other providers of those services that are
accessible.

(d) Time period. A recipient shall
comply with the requirement of paragraph (a) of this section within sixty days
of the effective date of this part except that where structural changes in
facilities are necessary, such changes shall be made within three years of the
effective date of this part, but in any event as expeditiously as possible.

(e) Transition plan. In the event
that structural changes to facilities are necessary to meet the requirement of
paragraph (a) of this section, a recipient shall develop, within six months of
the effective date of this part, a transition plan setting forth the steps
necessary to complete such changes. The plan shall be developed with the
assistance of interested persons, including handicapped persons or organizations
representing handicapped persons. A copy of the transition plan shall be made
available for public inspection. The plan shall, at a minimum:

(1) Identify physical obstacles in the
recipient's facilities that limit the accessibility of its program or activity
to handicappped persons;

(2) Describe in detail the methods that will
be used to make the facilities accessible;

(3) Specify the schedule for taking the steps
necessary to achieve full accessibility in order to comply with paragraph (a) of
this section and, if the time period of the transition plan is longer than one
year, identify the steps of that will be taken during each year of the
transition period; and

(4) Indicate the person responsible for
implementation of the plan.

(f) Notice. The recipient shall adopt
and implement procedures to ensure that interested persons, including persons
with impaired vision or hearing, can obtain information as to the existence and
location of services, activities, and facilities that are accessible to and
usuable by handicapped persons.

104.23 New construction.

(a) Design and construction. Each
facility or part of a facility constructed by, on behalf of, or for the use of a
recipient shall be designed and constructed in such manner that the facility or
part of the facility is readily accessible to and usable by handicapped persons,
if the construction was commenced after the effective date of this part.

(b) Alteration. Each facility or part
of a facility which is altered by, on behalf of, or for the use of a recipient
after the effective date of this part in a manner that affects or could affect
the usability of the facility or part of the facility shall, to the maximum
extent feasible, be altered in such manner that the altered portion of the
facility is readily accessible to and usable by handicapped persons.

(c) Conformance with Uniform Federal
Accessibility Standards. (1) Effective as of January 18, 1991, design,
construction, or alteration of buildings in conformance with sections 3‑8 of the
Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart
101‑19.6) shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and scoping
requirements of UFAS by the use of other methods are permitted where
substantially equivalent or greater access to and usability of the building is
provided.

(2) For purposes of this section, section
4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS
only mechanical rooms and other spaces that, because of their intended use, will
not require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with phusical handicaps.

(3) This section does not require recipients
to make building alterations that have little likelihood of being accomplished
without removing or altering a load‑bearing structural member.

Subpart D applies to preschool, elementary,
secondary, and adult education programs or activities that receive Federal
financial assistance and to recipients that operate, or that receive Federal
financial assistance for the operation of, such programs or activities.

104.32 Location and notification.

A recipient that operates a public elementary
or secondary education program or activity shall annually:

(a) Undertake to identify and locate every
qualified handicapped person residing in the recipient's jurisdiction who is not
receiving a public education; and

(b) Take appropriate steps to notify
handicapped persons and their parents or guardians of the recipient's duty under
this subpart.

104.33 Free appropriate public
education.

(a) General. A recipient that
operates a public elementary or secondary education program or activity shall
provide a free appropriate public education to each qualified handicapped person
who is in the recipient's jurisdiction, regardless of the nature or severity of
the person's handicap.

(b) Appropriate education. (1) For
the purpose of this subpart, the provision of an appropriate education is the
provision of regular or special education and related aids and services that (i)
are designed to meet individual educational needs of handicapped persons as
adequately as the needs of nonhandicapped persons are met and (ii) are based
upon adherence to procedures that satisfy the requirements of 104.34, 104.35,
and 104.36.

(2) Implementation of an Individualized
Education Program developed in accordance with the Education of the Handicapped
Act is one means of meeting the standard established in paragraph (b)(1)(i) of
this section.

(3) A recipient may place a handicapped person
or refer such a person for aid, benefits, or services other than those that it
operates or provides as its means of carrying out the requirements of this
subpart. If so, the recipient remains responsible for ensuring that the
requirements of this subpart are met with respect to any handicapped person so
placed or referred.

(c) Free education -- (1)
General. For the purpose of this section, the provision of a free
education is the provision of educational and related services without cost to
the handicapped person or to his or her parents or guardian, except for those
fees that are imposed on non-handicapped persons or their parents or guardian.
It may consist either of the provision of free services or, if a recipient
places a handicapped person or refers such person for aid, benefits, or services
not operated or provided by the recipient as its means of carrying out the
requirements of this subpart, of payment for the costs of the aid, benefits, or
services. Funds available from any public or private agency may be used to meet
the requirements of this subpart. Nothing in this section shall be construed to
relieve an insurer or similar third party from an otherwise valid obligation to
provide or pay for services provided to a handicapped person.

(2) Transportation. If a recipient
places a handicapped person or refers such person for aid, benefits, or services
not operated or provided by the recipient as its means of carrying out the
requirements of this subpart, the recipient shall ensure that adequate
transportation to and from the aid, benefits, or services is provided at no
greater cost than would be incurred by the person or his or her parents or
guardian if the person were placed in the aid, benefits, or services operated by
the recipient.

(3) Residential placement. If a
public or private residential placement is necessary to provide a free
appropriate public education to a handicapped person because of his or her
handicap, the placement, including non‑medical care and room and board, shall be
provided at no cost to the person or his or her parents or guardian.

(4) Placement of handicapped persons by
parents. If a recipient has made available, in conformance with the
requirements of this section and 104.34, a free appropriate public education to
a handicapped person and the person's parents or guardian choose to place the
person in a private school, the recipient is not required to pay for the
person's education in the private school. Disagreements between a parent or
guardian and a recipient regarding whether the recipient has made a free
appropriate public education available or otherwise regarding the question of
financial responsibility are subject to the due process procedures of
104.36.

(d) Compliance. A recipient may not
exclude any qualified handicapped person from a public elementary or secondary
education after the effective date of this part. A recipient that is not, on the
effective date of this regulation, in full compliance with the other
requirements of the preceding paragraphs of this section shall meet such
requirements at the earliest practicable time and in no event later than
September 1, 1978.

104.34 Educational setting.

(a) Academic setting. A recipient to
which this subpart applies shall educate, or shall provide for the education of,
each qualified handicapped person in its jurisdiction with persons who are not
handicapped to the maximum extent appropriate to the needs of the handicapped
person. A recipient shall place a handicapped person in the regular educational
environment operated by the recipient unless it is demonstrated by the recipient
that the education of the person in the regular environment with the use of
supplementary aids and services cannot be achieved satisfactorily. Whenever a
recipient places a person in a setting other than the regular educational
environment pursuant to this paragraph, it shall take into account the proximity
of the alternate setting to the person's home.

(b) Nonacademic settings. In
providing or arranging for the provision of nonacademic and extracurricular
services and activities, including meals, recess periods, and the services and
activities set forth in 104.37(a)(2), a recipient shall
ensure that handicapped persons participate with nonhandicapped persons in such
activities and services to the maximum extent appropriate to the needs of the
handicapped person in question.

(c) Comparable facilities. If a
recipient, in compliance with paragraph (a) of this section, operates a facility
that is identifiable as being for handicapped persons, the recipient shall
ensure that the facility and the services and activities provided therein are
comparable to the other facilities, services, and activities of the
recipient.

104.35 Evaluation and placement.

(a) Preplacement evaluation. A
recipient that operates a public elementary or secondary education program or
activity shall conduct an evaluation in accordance with the requirements of
paragraph (b) of this section of any person who, because of handicap, needs or
is believed to need special education or related services before taking any
action with respect to the initial placement of the person in regular or special
education and any subsequent significant change in placement.

(b) Evaluation procedures. A
recipient to which this subpart applies shall establish standards and procedures
for the evaluation and placement of persons who, because of handicap, need or
are believed to need special education or related services which ensure
that:

(1) Tests and other evaluation materials have
been validated for the specific purpose for which they are used and are
administered by trained personnel in conformance with the instructions provided
by their producer;

(2) Tests and other evaluation materials
include those tailored to assess specific areas of educational need and not
merely those which are designed to provide a single general intelligence
quotient; and

(3) Tests are selected and administered so as
best to ensure that, when a test is administered to a student with impaired
sensory, manual, or speaking skills, the test results accurately reflect the
student's aptitude or achievement level or whatever other factor the test
purports to measure, rather than reflecting the student's impaired sensory,
manual, or speaking skills (except where those skills are the factors that the
test purports to measure).

(c) Placement procedures. In
interpreting evaluation data and in making placement decisions, a recipient
shall (1) draw upon information from a variety of sources, including aptitude
and achievement tests, teacher recommendations, physical condition, social or
cultural background, and adaptive behavior, (2) establish procedures to ensure
that information obtained from all such sources is documented and carefully
considered, (3) ensure that the placement decision is made by a group of
persons, including persons knowledgeable about the child, the meaning of the
evaluation data, and the placement options, and (4) ensure that the placement
decision is made in conformity with 104.34.

(d) Reevaluation. A recipient to
which this section applies shall establish procedures, in accordance with
paragraph (b) of this section, for periodic reevaluation of students who have
been provided special education and related services. A reevaluation procedure
consistent with the Education for the Handicapped Act is one means of meeting
this requirement.

104.36 Procedural safeguards.

A recipient that operates a public elementary
or secondary education program or activity shall establish and implement, with
respect to actions regarding the identification, evaluation, or educational
placement of persons who, because of handicap, need or are believed to need
special instruction or related services, a system of procedural safeguards that
includes notice, an opportunity for the parents or guardian of the person to
examine relevant records, an impartial hearing with opportunity for
participation by the person's parents or guardian and representation by counsel,
and a review procedure. Compliance with the procedural safeguards of section 615
of the Education of the Handicapped Act is one means of meeting this
requirement.

104.37 Nonacademic services.

(a) General. (1) A recipient to which
this subpart applies shall provide non‑academic and extracurricular services and
activities in such manner as is necessary to afford handicapped students an
equal opportunity for participation in such services and activities.

(2) Nonacademic and extracurricular services
and activities may include counseling services, physical recreational athletics,
transportation, health services, recreational activities, special interest
groups or clubs sponsored by the recipients, referrals to agencies which provide
assistance to handicapped persons, and employment of students, including both
employment by the recipient and assistance in making available outside
employment.

(b) Counseling services. A recipient
to which this subpart applies that provides personal, academic, or vocational
counseling, guidance, or placement services to its students shall provide these
services without discrimination on the basis of handicap. The recipient shall
ensure that qualified handicapped students are not counseled toward more
restrictive career objectives than are nonhandicapped students with similar
interests and abilities.

(c) Physical education and athletics.
(1) In providing physical education courses and athletics and similar aid,
benefits, or services to any of its students, a recipient to which this subpart
applies may not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors interscholastic, club,
or intramural athletics shall provide to qualified handicapped students an equal
opportunity for participation.

(2) A recipient may offer to handicapped
students physical education and athletic activities that are separate or
different from those offered to nonhandicapped students only if separation or
differentiation is consistent with the requirements of 104.34 and only if no
qualified handicapped student is denied the opportunity to compete for teams or
to participate in courses that are not separate or different.

104.38 Preschool and adult
education.

A recipient to which this subpart applies that
provides preschool education or day care or adult education may not, on the
basis of handicap, exclude qualified handicapped persons and shall take into
account the needs of such persons in determining the aid, benefits, or services
to be provided.

104.39 Private education.

(a) A recipient that provides private
elementary or secondary education may not, on the basis of handicap, exclude a
qualified handicapped person if the person can, with minor adjustments, be
provided an appropriate education, as defined in 104.33(b)(1), within that
recipients program or activity.

(b) A recipient to which this section applies
may not charge more for the provision of an appropriate education to handicapped
persons than to nonhandicapped persons except to the extent that any additional
charge is justified by a substantial increase in cost to the recipient.

(c) A recipient to which this section applies
that provides special education shall do so in accordance with the provisions of
104.35 and 104.36. Each recipient to which this section applies is subject to
the provisions of 104.34, 104.37, and 104.38.

Subpart E --
Postsecondary Education

104.41 Application of this subpart.

Subpart E applies to postsecondary education
programs or activities, including postsecondary vocational education programs or
activities, that receive Federal financial assistance and to recipients that
operate, or that receive Federal financial assistance for the operation of, such
programs or activities.

104.42 Admissions and recruitment.

(a) General. Qualified handicapped
persons may not, on the basis of handicap, be denied admission or be subjected
to discrimination in admission or recruitment by a recipient to which this
subpart applies.

(b) Admissions. In administering its
admission policies, a recipient to which this subpart applies:

(1) May not apply limitations upon the number
or proportion of handicapped persons who may be admitted;

(2) May not make use of any test or criterion
for admission that has a disproportionate, adverse effect on handicapped persons
or any class of handicapped persons unless (i) the test or criterion, as used by
the recipient, has been validated as a predictor of success in the education
program or activity in question and (ii) alternate tests or criteria that have a
less disproportionate, adverse effect are not shown by the Assistant Secretary
to be available.

(3) Shall assure itself that (i) admissions
tests are selected and administered so as best to ensure that, when a test is
administered to an applicant who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's aptitude or
achievement level or whatever other factor the test purports to measure, rather
than reflecting the applicant's impaired sensory, manual, or speaking skills
(except where those skills are the factors that the test purports to measure);
(ii) admissions tests that are designed for persons with impaired sensory,
manual, or speaking skills are offered as often and in as timely a manner as are
other admissions tests; and (iii) admissions tests are administered in
facilities that, on the whole, are accessible to handicapped persons; and

(4) Except as provided in paragraph (c) of
this section, may not make preadmission inquiry as to whether an applicant for
admission is a handicapped person but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.

(c) Preadmission inquiry exception.
When a recipient is taking remedial action to correct the effects of past
discrimination pursuant to 104.6(a) or when a recipient is taking voluntary
action to overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to
104.6(b), the recipient may invite applicants for admission to indicate whether
and to what extent they are handicapped, Provided, That:

(1) The recipient states clearly on any
written questionnaire used for this purpose or makes clear orally if no written
questionnaire is used that the information requested is intended for use solely
in connection with its remedial action obligations or its voluntary action
efforts; and

(2) The recipient states clearly that the
information is being requested on a voluntary basis, that it will be kept
confidential, that refusal to provide it will not subject the applicant to any
adverse treatment, and that it will be used only in accordance with this
part.

(d) Validity studies. For the purpose
of paragraph (b)(2) of this section, a recipient may base prediction equations
on first year grades, but shall conduct periodic validity studies against the
criterion of overall success in the education program or activity in question in
order to monitor the general validity of the test scores.

104.43 Treatment of students;
general.

(a) No qualified handicapped student shall, on
the basis of handicap, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination under any academic, research,
occupational training, housing, health insurance, counseling, financial aid,
physical education, athletics, recreation, transportation, other
extracurricular, or other postsecondary education aid, benefits, or services to
which this subpart applies.

(b) A recipient to which this subpart applies
that considers participation by students in education programs or activities not
operated wholly by the recipient as part of, or equivalent to, and education
program or activity operated by the recipient shall assure itself that the other
education program or activity, as a whole, provides an equal opportunity for the
participation of qualified handicapped persons.

(c) A recipient to which this subpart applies
may not, on the basis of handicap, exclude any qualified handicapped student
from any course, course of study, or other part of its education program or
activity.

(d) A recipient to which this subpart applies
shall operate its program or activity in the most integrated setting
appropriate.

104.44 Academic adjustments.

(a) Academic requirements. A
recipient to which this subpart applies shall make such modifications to its
academic requirements as are necessary to ensure that such requirements do not
discriminate or have the effect of discriminating, on the basis of handicap,
against a qualified handicapped applicant or student. Academic requirements that
the recipient can demonstrate are essential to the instruction being pursued by
such student or to any directly related licensing requirement will not be
regarded as discriminatory within the meaning of this section. Modifications may
include changes in the length of time permitted for the completion of degree
requirements, substitution of specific courses required for the completion of
degree requirements, and adaptation of the manner in which specific courses are
conducted.

(b) Other rules. A recipient to which
this subpart applies may not impose upon handicapped students other rules, such
as the prohibition of tape recorders in classrooms or of dog guides in campus
buildings, that have the effect of limiting the participation of handicapped
students in the recipient's education program or activity.

(c) Course examinations. In its
course examinations or other procedures for evaluating students' academic
achievement, a recipient to which this subpart applies shall provide such
methods for evaluating the achievement of students who have a handicap that
impairs sensory, manual, or speaking skills as will best ensure that the results
of the evaluation represents the student's achievement in the course, rather
than reflecting the student's impaired sensory, manual, or speaking skills
(except where such skills are the factors that the test purports to
measure).

(d) Auxiliary aids. (1) A recipient
to which this subpart applies shall take such steps as are necessary to ensure
that no handicapped student is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination because of the
absence of educational auxiliary aids for students with impaired sensory,
manual, or speaking skills.

(2) Auxiliary aids may include taped texts,
interpreters or other effective methods of making orally delivered materials
available to students with hearing impairments, readers in libraries for
students with visual impairments, classroom equipment adapted for use by
students with manual impairments, and other similar services and actions.
Recipients need not provide attendants, individually prescribed devices, readers
for personal use or study, or other devices or services of a personal
nature.

104.45 Housing.

(a) Housing provided by the
recipient. A recipient that provides housing to its nonhandicapped students
shall provide comparable, convenient, and accessible housing to handicapped
students at the same cost as to others. At the end of the transition period
provided for in subpart C, such housing shall be available in sufficient
quantity and variety so that the scope of handicapped students' choice of living
accommodations is, as a whole, comparable to that of nonhandicapped
students.

(b) Other housing. A recipient that
assists any agency, organization, or person in making housing available to any
of its students shall take such action as may be necessary to assure itself that
such housing is, as a whole, made available in a manner that does not result in
discrimination on the basis of handicap.

104.46 Financial and employment assistance to
students.

(a) Provision of financial
assistance. (1) In providing financial assistance to qualified handicapped
persons, a recipient to which this subpart applies may not,

(i) On the basis of handicap, provide less
assistance than is provided to nonhandicapped persons, limit eligibility for
assistance, or otherwise discriminate or

(ii) Assist any entity or person that provides
assistance to any of the recipient's students in a manner that discriminates
against qualified handicapped persons on the basis of handicap.

(2) A recipient may administer or assist in
the administration of scholarships, fellowships, or other forms of financial
assistance established under wills, trusts, bequests, or similar legal
instruments that require awards to be made on the basis of factors that
discriminate or have the effect of discriminating on the basis of handicap only
if the overall effect of the award of scholarships, fellowships, and other forms
of financial assistance is not discriminatory on the basis of handicap.

(b) Assistance in making available outside
employment. A recipient that assists any agency, organization, or person in
providing employment opportunities to any of its students shall assure itself
that such employment opportunities, as a whole, are made available in a manner
that would not violate subpart B if they were provided by the recipient.

(c) Employment of students by
recipients. A recipient that employs any of its students may not do so in a
manner that violates subpart B.

104.47 Nonacademic services.

(a) Physical education and athletics.
(1) In providing physical education courses and athletics and similar aid,
benefits, or services to any of its students, a recipient to which this subpart
applies may not disacriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors intercollegiate, club,
or intramural athletics shall provide to qualified handicapped students an equal
opportunity for participation in these activities.

(2) A recipient may offer to handicapped
students physical education and athletic activities that are separate or
different only if separation or differentiation is consistent with the
requirements of 104.43(d) and only if no qualified handicapped student is
denied the opportunity to compete for teams or to participate in courses that
are not separate or different.

(b) Counseling and placement
services. A recipient to which this subpart applies that provides personal,
academic, or vocational counseling, guidance, or placement services to its
students shall provide these services without discrimination on the basis of
handicap. The recipient shall ensure that qualified handicapped students are not
counseled toward more restrictive career objectives than are nonhandicapped
students with similar interests and abilities. This requirement does not
preclude a recipient from providing factual information about licensing and
certification requirements that may present obstacles to handicapped persons in
their pursuit of particular careers.

(c) Social organizations. A recipient
that provides significant assistance to fraternities, sororities, or similar
organizations shall assure itself that the membership practices of such
organizations do not permit discrimination otherwise prohibited by this
subpart.

Subpart F -- Health,
Welfare, and Social Services

104.51 Application of this subpart.

Subpart F applies to health, welfare, and
other social service programs or activities that receive Federal financial
assistance and to recipients that operate, or that receive Federal financial
assistance for the operation of, such programs or activities.

104.52 Health, welfare, and other social
services.

(a) General. In providing health,
welfare, or other social services or benefits, a recipient may not, on the basis
of handicap:

(1) Deny a qualified handicapped person these
benefits or services;

(2) Afford a qualified handicapped person an
opportunity to receive benefits or services that is not equal to that offered
nonhandicapped persons;

(3) Provide a qualified handicapped person
with benefits or services that are not as effective (as defined in 104.4(b)) as
the benefits or services provided to others;

(4) Provide benefits or services in a manner
that limits or has the effect of limiting the participation of qualified
handicapped persons; or

(5) Provide different or separate benefits or
services to handicapped persons except where necessary to provide qualified
handicapped persons with benefits and services that are as effective as those
provided to others.

(b) Notice. A recipient that provides
notice concerning benefits or services or written material concerning waivers of
rights or consent to treatment shall take such steps as are necessary to ensure
that qualified handicapped persons, including those with impaired sensory or
speaking skills, are not denied effective notice because of their handicap.

(c) Emergency treatment for the hearing
impaired. A recipient hospital that provides health services or benefits
shall establish a procedure for effective communication with persons with
impaired hearing for the purpose of providing emergency health care.

(d) Auxiliary aids. (1) A recipient
to which this subpart applies that employs fifteen or more persons shall provide
appropriate auxiliary aids to persons with impaired sensory, manual, or speaking
skills, where necessary to afford such persons an equal opportunity to benefit
from the service in question.

(2) The Assistant Secretary may require
recipients with fewer than fifteen employees to provide auxiliary aids where the
provision of aids would not significantly impair the ability of the recipient to
provide its benefits or services.

(3) For the purpose of this paragraph,
auxiliary aids may include brailled and taped material, interpreters, and other
aids for persons with impaired hearing or vision.

104.53 Drug and alcohol addicts.

A recipient to which this subpart applies that
operates a general hospital or outpatient facility may not discriminate in
admission or treatment against a drug or alcohol abuser or alcoholic who is
suffering from a medical condition, because of the person's drug or alcohol
abuse or alcoholism.

104.54 Education of institutionalized
persons.

A recipient to which this subpart applies and
that operates or supervises a program or activity that provides aid, benefits or
services for persons who are institutionalized because of handicap shall ensure
that each qualified handicapped person, as defined in 104.3(k)(2), in its
program or activity is provided an appropriate education, as defined in
104.33(b). Nothing in this section shall be interpreted as altering in any way
the obligations of recipients under subpart D.

Subpart G --
Procedures

104.61 Procedures.

The procedural provisions applicable to title
VI of the Civil Rights Act of 1964 apply to this part. These procedures are
found in 100.6‑100.10 and part 101 of this title.